Opinion
No. 2D00-4549.
Opinion filed March 28, 2001. Rehearing Denied May 17, 2001.
Appeal pursuant to Fla.R.App.P.9.141(b)(2) from the Circuit Court for Polk County; Donald G. Jacobsen, Judge.
Affirmed in part, Reversed, and Remanded with instructions.
James Allen challenges the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He raised two grounds in his motion. We affirm the denial of the first ground without comment, but we reverse and remand for further proceedings on the second ground.
Allen was convicted of possession of cocaine with intent to sell while carrying a firearm, a first-degree felony. The written sentence reflects a sentence of forty years' prison as a habitual offender followed by ten years' probation. In his motion, Allen alleged that the written sentence does not conform to the oral pronouncement in that he was not orally sentenced as a habitual offender. A review of the sentencing transcript indicates that Allen's assertion is correct.
We reverse that portion of the trial court's order denying this claim and remand with instructions to the trial court to strike the habitual offender designation from Allen's written sentence and to resentence Allen within the statutory maximum for the offense. See Simon v. State, 26 Fla. L. Weekly D409, ___ So.2d ___, 2001 WL 98564 (Fla. 2d DCA Feb. 7, 2001).
PARKER, A.C.J., and NORTHCUTT, J., Concur.